Last Updated: 23rd August, 2023 (Version 1.2)
THIS AGREEMENT CONSTITUTES A LEGALLY BINDING CONTRACT BETWEEN A USER OF OUR WEBSITE (“YOU” OR “YOUR”) AND THE OPERATOR OF THE WEBSITE, TOAST INTERACTIVE INC. AND TOAST VR PTY LTD (COLLECTIVELY, “TOAST INTERACTIVE,” “WE,” “US,” OR “OUR”). THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THE WEBSITE, OUR SOCIAL MEDIA PAGES, AND ANY PRODUCTS AND SERVICES OFFERED TO YOU BY TOAST INTERACTIVE THROUGH THE WEBSITE (OUR “SERVICES”).
Changes to Agreement
We may change, modify, add or remove portions of this Agreement (each, an “Update”) at any time and in our sole discretion without prior notice to you and such Updates will be effective immediately. If we make Updates to this Agreement, we will change the “Last Updated” date above. Your continued use of the Website will confirm your acceptance of the updated Agreement. We encourage you to frequently review the Agreement to ensure you understand the latest terms and conditions associated with use of the Website. If you do not agree to the updated Agreement, you must discontinue using the Website and Services.
Companies, Organizations & Other Legal Entities. If you are entering into this Agreement on behalf of a company, organization or other legal entity, you represent that you have the authority to bind such entity and its affiliates, in which case the terms “you” or “your” shall also refer to such entity and its affiliates. You further agree that you assume all responsibility and liability in connection with your use of the Website and Services on behalf of such company, organization or other legal entity, and you shall be solely responsible for all disputes, if any, that arise due to your use of the Website and Services on behalf of such company, organization or other legal entity.
Children. The Website and Services are available only for individuals aged 13 years or older. If you are age 13 or older but under the age of 18 (or the legal age of majority where you reside if that jurisdiction has an older age of majority), then you agree to review this Agreement with your parent or guardian to make sure that both you and your parent or guardian understand and agree to this Agreement. You agree to have your parent or guardian review and accept this Agreement on your behalf. If you are a parent or guardian agreeing to this Agreement for the benefit of a child, then you agree to and accept full responsibility for that child’s use of the Website and our Services, including all financial charges and legal liability that he or she may incur.
We may, in our sole discretion, refuse to offer Services to any person or entity and change the eligibility criteria for using the Website and Services at any time.
Terms of Access and Use
This Agreement and the terms of the license described above will also govern upgrades, future releases, updates and additions to the Website’s functionality provided by Toast Interactive that replace or supplement an earlier version of the Website, unless such upgrade is accompanied by a separate license, in which case the terms of that license will govern.
Additional Terms for Richie’s Plank Experience
Additional Terms made available to you on the Website and/or otherwise by Toast Interactive will apply to your purchase, access, registration for, download and use of Richie’s Plank Experience (the “Game”), including but not limited to the End User License Agreement for the Game (the “EULA”) available at https://toastinteractive.com/eula/ and the Health and Safety Guidelines for the Game available at https://toastinteractive.com/safety.
Modification to Website and Services
Toast Interactive may, at any time, modify, suspend or discontinue the Website and/or Services, or any part thereof, with or without notice. Toast Interactive will not be liable to you or to any third party for any modification, suspension or discontinuance of the Website and/or Services as permitted herein.
The rights granted to you under this Agreement are subject to the following conduct guidelines concerning the Website:
- You will not copy, reproduce, distribute, transmit, republish, post, publicly perform or publicly display the Website and/or Services or any information or content made available on or through the Website and/or Services without Toast Interactive’s prior written consent;
- You will not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, frame, reverse compile or reverse engineer any part of the Website and/or Services;
- You will not access or use the Website and/or Services to build a similar or competitive service or application;
- You will not remove or destroy any copyright notices or other proprietary markings contained on or in any portion of the Website;
- You will not use any scraping, data mining, robots or similar data gathering or extraction methods on the Website, and you will not collect or harvest any personally identifiable information;
- You will not create or compile, directly or indirectly, any collection, compilation, database, or directory from the Website or Services;
- You will not disrupt the operation of the Website and/or Services in any manner or impose an unreasonable or disproportionately large load on our infrastructure, for example by using methods such as denial of service attacks, flooding and spamming;
- You will not transmit any “junk mail”, “chain letter” or “spam” or any other similar solicitation;
- You will not attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Website;
- You will not probe, scan or test the vulnerability of our system or network or attempt to breach security or authentication measures;
- You will not upload invalid data, viruses, worms, keyloggers, spyware, Trojan horses, time bombs, malicious or harmful code, or other software agents through the Website;
- You will not use the Website and/or Services other than for their intended purposes; and
- You will not access or use the Website and/or Services in an unlawful way or for an unlawful or illegitimate purpose.
You are solely responsible for complying with all laws, rules and regulations applicable to you when you use the Website and/or Services. You agree to comply with the above conduct and usage requirements (“Conduct Guidelines”) and agree not to assist or permit any person to engage in any conduct that does not comply with the above conduct. Any use of the Website and/or Services in violation of these Conduct Guidelines is prohibited and may result in our suspension or termination of your right to use the Website and/or Services, and may possibly expose you to legal action and damages.
Toast Interactive Content
Except for Third Party Content and User Content (each defined below), all information and materials contained on or within the Website, including, but not limited to, text, graphics, HTML, look and feel, images, illustrations, designs, photographs, audio, video, white papers, press releases, names, product names or descriptions, icons, typefaces, software (both source and object code), format, queries, algorithms and written and other materials and information (collectively, “Toast Interactive Content“), as well as their selection and arrangement, and all intellectual property and other rights relating to Toast Interactive Content, as between you and Toast Interactive, are solely and exclusively owned by Toast Interactive. You will not delete or alter any copyright, trademark or other proprietary rights notices from Toast Interactive Content.
You shall abide by the following guidelines with respect to all User Content provided to Toast Interactive (our “Content Guidelines”). User Content must not:
- Contain any material which is false, misleading, defamatory, obscene, indecent, abusive, offensive, threatening, harassing, hateful, inflammatory, an invasion of privacy, or is otherwise objectionable;
- Contain any information or content that we deem to be denigrating or offensive to any individual or group on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability, or to be otherwise objectionable;
- Exploit, harm or attempt to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise;
- Create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you or to any other person;
- Create a risk of any loss or damage to property;
- Create or compile, directly or indirectly, any collection, compilation, database, or directory from the Website and/or Services;
- Impersonate any person, or misrepresent your identity or affiliation with any person or organization;
- Include advertisements, promotional materials or solicitations related to any product or service;
- Contain any medical advice, or give the impression that it contains medical advice; or
- Give the impression of endorsement by Toast Interactive or any other person or entity, if this is not the case.
Any use of the Website and/or Services in violation of Content Guidelines is prohibited and may result in our suspension or termination of your right to use the Website and/or Services, removal of your User Content, and may possibly expose you to legal action and damages.
Third Party Content
The Website and Services may contain proprietary information and materials licensed or provided to Toast Interactive by third parties in connection with Toast Interactive’s provision of the Services and/or other business purposes (collectively, “Third Party Content”). Third Party Content is the copyrighted work of its owner, who expressly retains all right, title and interest in and to the Third Party Content, including, without limitation, all intellectual property rights therein and thereto.
Any reliance you place on the Website and Services, Toast Interactive Content, User Content and/or Third Party Content is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or by anyone who may be informed of or exposed to such materials. THE WEBSITE AND SERVICES MAY PROVIDE GENERAL INFORMATION ABOUT HEALTH AND SAFETY. SUCH INFORMATION IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT PROVIDED BY A DOCTOR OR OTHER QUALIFIED HEALTHCARE PROFESSIONAL. YOU SHOULD NOT DISREGARD MEDICAL ADVICE OR DELAY SEEKING MEDICAL CARE BASED ON ANYTHING PRESENTED ON OR THROUGH THE WEBSITE AND/OR SERVICES. TOAST INTERACTIVE IS NOT ENGAGED IN RENDERING MEDICAL OR SIMILAR PROFESSIONAL SERVICES, AND INFORMATION AND ADVICE MADE AVAILABLE ON OR THROUGH THE WEBSITE AND/OR SERVICES SHOULD NOT BE USED FOR DIAGNOSING A HEALTH PROBLEM OR DISEASE.
All statements and/or opinions expressed in the Third Party Content are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Toast Interactive. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
When we make available certain social media features through Facebook, Twitter, Instagram, or other social media sites, you may take such actions as are enabled by those features. Please be aware that activities on our social media sites, or facilitated by or through our social media sites, are subject to the terms and conditions of the applicable social media site(s). Any information or content provided to social media sites may be processed and used by the applicable social media sites in accordance with their policies and any agreements with Toast Interactive.
Links to Other Sites
Toast Interactive and/or its licensors own all right, title and interest, including all related intellectual property rights, in and to the Website, Services, Toast Interactive Content and Third Party Content. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Website, Services, Toast Interactive Content and/or Third Party Content. Toast Interactive reserves all rights not expressly granted in this Agreement.
All trademarks, service marks, logos, slogans and taglines displayed on or through the Website are the property of Toast Interactive and its licensors or their respective owners and nothing contained herein should be construed as granting any license or right to use any trademarks, service marks, logos, slogans or taglines displayed on or through the Website without the express written permission of Toast Interactive, or such third-party that may own the trademark, service mark, logo, slogan or tagline.
We welcome feedback, comments and suggestions for improvements to the Website and/or Services (“Feedback”). You can submit Feedback by emailing us at firstname.lastname@example.org. You grant us a nonexclusive, irrevocable, worldwide, royalty-free, fully paid up right and license to use any Feedback provided by you to us with respect to the Website and/or Services, and we can use, disclose, reproduce, license and otherwise distribute and exploit Feedback in any manner without obligation or restriction of any kind on account of intellectual property rights or otherwise. Toast Interactive will treat any Feedback you provide to us as non-confidential and non-proprietary.
Consent to Electronic Notice
If you provide your email address to Toast Interactive through the Website or by e-mailing Toast Interactive directly, you agree that Toast Interactive may communicate with you electronically regarding administrative, security and other issues relating to your use of the Website and Services. You agree that any notices, agreements, disclosures or other communications that Toast Interactive sends to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The foregoing does not affect your statutory rights.
Limitation of Liability
IN NO EVENT SHALL TOAST INTERACTIVE OR ITS AFFILIATES, OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, LICENSORS OR SUPPLIERS, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING LOST PROFITS, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON YOUR COMPUTER OR DEVICE OR OTHERWISE, OR SIMILAR DAMAGES) RESULTING FROM OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION (I) YOUR USE OR INABILITY TO USE THE WEBSITE AND/OR SERVICES, OR ERRORS, MISTAKES, OR INACCURACIES IN TOAST INTERACTIVE CONTENT OR THIRD PARTY CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE WEBSITE AND SERVICES, (II) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM THE WEBSITE AND/OR SERVICES, (III) ANY INFRINGEMENT BY THE WEBSITE AND/OR SERVICES OF THE INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS OF THIRD PARTIES; (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE, (V) ANY ERRORS OR OMISSIONS IN THE WEBSITE AND/OR SERVICES, IN EACH CASE WHETHER SUCH DAMAGES ARE BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TOAST INTERACTIVE IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
You are solely responsible for all claims, injuries (including death), illnesses, damages, liabilities, and costs (“Liabilities”) suffered by you or any third party as a result of your use of the Website and/or Services. To the maximum extent permitted by applicable law, you hereby release the Toast Interactive Parties (as defined below) from any and all responsibility and liability for the foregoing.
YOU HEREBY WAIVE THE PROVISIONS OF ANY STATE OR LOCAL LAW LIMITING OR PROHIBITING A GENERAL RELEASE. IF YOU ARE A CALIFORNIA RESIDENT, YOU ACKNOWLEDGE AND HEREBY EXPRESSLY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” You hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to the release of any unknown or unsuspected claims you may have against the Toast Interactive Parties pertaining to the subject matter of this section.
Indemnification By You
Without limiting the generality or effect of other provisions of this Agreement, as a condition of accessing or using the Website and/or Services, you agree, at your expense, to indemnify and hold harmless Toast Interactive and its affiliates, licensors and suppliers, and our and their officers, directors, employees and agents (“Toast Interactive Parties”), from and against any and all losses, costs, damages, liabilities and expenses (including without limitation attorneys’ fees) in relation to or arising from (i) your use or inability to use the Website and/or Services, (ii) your User Content, if any, (iii) your failure to comply with any applicable laws and regulations (including any privacy laws), (iv) your violation of any third party right, including without limitation any copyright, property or privacy right, or (v) your breach of any obligations set forth in this Agreement. You shall not settle any such claim without the written consent of the applicable indemnified party.
For any third-party claim covered under this indemnification provision, we will notify you upon becoming aware of the claim, and you will also defend such claim at your expense if instructed by us to do so. If we or our partners or licensors are obligated to respond to a third-party subpoena or other compulsory legal order or process, you will also reimburse us for reasonable attorneys’ fees, as well as employees’ and contractors’ time and materials spent responding to the third-party subpoena or other compulsory legal order or process at the applicable then-current hourly rates.
Term, Suspension and Termination
This Agreement will remain in full force and effect while you use the Website and/or Services. We reserve the right (but have no obligation) to investigate and/or take appropriate action against you in our sole discretion if you violate this Agreement or otherwise create liability for us or any other person. Such actions could include suspending or terminating your rights with respect to the Website or Service, with or without notice. If your rights with respect to the Website or Services are suspended or terminated, you agree to make no further use of the Website and Services as directed by Toast Interactive for the duration of the suspension or indefinitely following termination.
ARBITRATION CLAUSE & CLASS ACTION WAIVER – APPLICABLE TO THE FULL EXTENT PERMITTED BY LAW
Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Los Angeles, California, United States of America, before one arbitrator. The language to be used in the arbitral proceedings will be English. If the dispute, claim or controversy exceeds $250,000, the arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (the “Rules”), and if not, the arbitration shall be administered by JAMS pursuant to the Rules and in accordance with the Expedited Procedures or similar process set forth in the Rules. Judgment on the award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
In any arbitration arising out of or related to this Agreement, the arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.
YOU AND TOAST INTERACTIVE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding.
YOU AND TOAST INTERACTIVE EACH HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY FOR DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT, AND THIS WAIVER APPLIES REGARDLESS OF THE TYPE OF DISPUTE, WHETHER PROCEEDING UNDER CLAIMS OF CONTRACT OR TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR ANY OTHER THEORY.
You agree that Toast Interactive is not responsible to you for anything that we may otherwise be responsible for, if it is the result of events beyond our control, including, but not limited to, acts of God, war, insurrection, riots, terrorism, crime, pandemics and epidemics, labor shortages (including lawful and unlawful strikes), embargoes, postal disruption, communication disruption, failure or shortage of infrastructure, shortage of materials, or any other event beyond our control.
Governing Law and Venue
This Agreement shall be governed by the laws of the State of Delaware, United States of America, without regard to its rules on conflicts or choice of law. Each party submits to the exclusive jurisdiction of the courts of the State of California, United States of America, in relation to any proceedings that may be brought at any time relating to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
If you have any questions about the Website or this Agreement, please contact us at email@example.com.